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BY-LAWS
OF
ENTEX SERVICES, INC.
ARTICLE I
Stockholders' Meetings; Voting
Section 1.1. Annual Meetings. An annual meeting of
stockholders shall be held for the election of directors on the first Monday in
May of each year, if not a legal holiday, and, if a legal holiday, then on the
next day not a legal holiday, at 10:00 o'clock in the forenoon at such time and
place either within or without the State of Delaware as may be designated by the
Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of
stockholders may be called at any time by the Chairman of the Board, the
President, the Board of Directors, or as provided in Section 2.2, to be held at
such date, time and place either within or without the State of Delaware as may
be stated in the notice of the meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the Corporation. The Corporation shall,
at the written request of any stockholder, cause such notice to such stockholder
to be confirmed to such other address and/or by such other means as such
stockholder may reasonably request, provided that if such written request is
received after the date any such notice is mailed, such request shall be
effective for subsequent notices only.
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Section 1.4. Adjournments. Any meeting of stockholders, annual
or special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. At each meeting of stockholders, except
where otherwise provided by law or the certificate of incorporation or these
by-laws, the holders of a majority of the outstanding shares of each class of
stock entitled to vote at the meeting, present in person or represented by
proxy, shall constitute a quorum. With respect to any matter on which
stockholders vote separately as a class, the holders of a majority of the
outstanding shares of such class shall constitute a quorum for a meeting with
respect to such matter. Two or more classes or series of stock shall be
considered a single class for purposes of determining existence of a quorum for
any matter to be acted on if the holders thereof are entitled or required to
vote together as a single class at the meeting on such matter. In the absence of
a quorum the stockholders so present may, by majority vote, adjourn the meeting
from time to time in the manner provided by Section 1.4 of these by-laws until a
quorum shall attend.
Section 1.6. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, or in his absence by the President,
or in his absence by a Vice President, or in the absence of the foregoing
persons by a chairman designated by the Board of Directors, or in the absence of
such designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Unless otherwise provided in the
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meet-
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ing may authorize another person or persons to act for him by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation. Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors unless the holders of a majority
of the outstanding shares of any class of stock entitled to vote thereon present
in person or by proxy at such meeting shall so determine. At all meetings of
stockholders for the election of directors, such election and all other
elections and questions shall, unless otherwise provided by law or by the
certificate of incorporation or these by-laws, be decided by the vote of the
holders of a majority of the outstanding shares of all classes of stock entitled
to vote thereon present in person or by proxy at the meeting, voting as a single
class.
Section 1.8. Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action. If no record date is fixed: (1) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the Board is necessary, shall be the day on which the first written consent
is expressed; and (3) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto. A determination
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of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
Section 1.9. List of Stockholders Entitled to Vote. The
Secretary shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present.
Section 1.10. Consent of Stockholders in Lieu of Meeting. To
the extent provided by any statute at the time in force, whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken for or in
connection with any corporate action, by any statute, by the certificate of
incorporation or by these by-laws, the meeting and prior notice thereof and vote
of stockholders may be dispensed with if the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted shall consent in writing to such corporate action without
a meeting by less than unanimous written consent and notice thereof shall be
given to those stockholders who have not consent in writing.
ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications. The business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors, except as may be otherwise provided by law or in the
certificate of incorporation. The number of Directors which shall constitute the
whole Board of Directors shall be less than one (1). The number of
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directors may be fixed from time to time by vote of the stockholders or of the
Board of Directors, at any regular or special meeting, subject to the provisions
of the certificate of incorporation.
Section 2.2. Election; Term of Office; Resignation; Removal;
Vacancies; Special Elections. Except as otherwise provided in this Section 2.2,
the directors shall be elected annually at the annual meeting of the
stockholders. Each director (whenever elected) shall hold office until the
annual meeting of stockholders or any special meeting of stockholders called to
elect directors next succeeding his election and until his successor is elected
and qualified or until his earlier resignation or removal, except as provided in
the certificate of incorporation. Any director may resign at any time upon
written notice to the Board of Directors or to the Chairman of the Board or to
the President of the Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. Any director may be removed
with or without cause at any time upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote
for the election of such director, given at a special meeting of such
stockholders called for the purpose. If any vacancies shall occur in the Board
of Directors, by reason of death, resignation, removal or otherwise, or if the
authorized number of directors shall be increased, the directors then in office
shall continue to act, and such vacancies may be filled by a majority of the
directors then in office, though less than a quorum; provided, however, that
whenever the holders of any class or classes of stock or series thereof are
entitled to elect one or more directors by the provisions of the certificate of
incorporation, vacancies and newly created directorships of such class or
classes or series shall be filled by a majority of the directors elected by such
class or classes or series thereof then in office though less than a quorum or
by a sole remaining director so elected. Any such vacancies or newly created
directorships may also be filled upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote
for the election of directors, given at a special meeting of the stockholders
called for the purpose.
Section 2.3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the State of Delaware
and at such times as the Board
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may from time to time determine, and if so determined notice thereof need not be
given.
Section 2.4. Special Meetings. Special meetings of the Board
of Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board, by the President or by
any two directors. Reasonable notice thereof shall be given by the person or
persons calling the meeting.
Section 2.5. Telephonic Meetings Permitted. Unless otherwise
restricted by the certificate of incorporation or these by-laws, any member of
the Board of Directors, or any committee designated by the Board, may
participate in a meeting of the Board or of such committee, as the case may be,
by means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this by-law shall constitute presence in
person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings
of the Board of Directors the presence of [a majority] of the total number of
directors shall constitute a quorum for the transaction of business. The vote of
at least [a majority] of the directors present at any meeting at which a quorum
is present shall be necessary to constitute and shall be the act of the Board
unless the certificate of incorporation or these by-laws shall otherwise
provide. In case at any meeting of the Board a quorum shall not be present, the
members of the Board present may adjourn the meeting from time to time until a
quorum shall attend.
Section 2.7. Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, or in his absence by the
President, or in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the chairman
of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8. Action by Directors Without a Meeting. Unless
otherwise restricted by the certificate of incorporation or these by-laws, any
action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board or such committee, as the case may be, consents thereto
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in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by
resolution passed by a majority of the total number of directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. Any such committee, to the extent provided in the resolution of
the Board, and unless otherwise restricted by the certificate of incorporation
or these by-laws, shall have and may exercise all the powers and authority of
the Board in the management of the business and affairs of the Corporation, to
the full extent permitted by law.
Section 3.2. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board may adopt, amend and
repeal rules for the conduct of its business. In the absence of a provision by
the Board or a provision in the rules of such committee to the contrary, the
entire authorized number of members of such committee shall constitute a quorum
for the transaction of business, the vote of all such members present at a
meeting shall be the act of such committee, and in other respects each committee
shall conduct its business pursuant to Article II of these by-laws.
ARTICLE IV
Officers
Section 4.1. Officers; Election. As soon as practicable after
the annual meeting of stockholders in each year, the Board shall elect a
President and a Secretary. The Board may also elect a Chairman of the Board, one
or more Vice Presidents, one or more Assistant Vice Presidents, one or more
Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and may
give any of them such further designations or alternate titles as it considers
desirable. Any number of offices may be held by the same person.
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Section 4.2. Term of Office; Resignation; Removal; Vacancies.
Except as otherwise provided in the resolution of the Board of Directors
electing any officer, each officer shall hold office until the first meeting of
the Board after the annual meeting of stockholders next succeeding his election,
and until his successor is elected and qualified or until his earlier
resignation or removal. Any officer may resign at any time upon written notice
to the Board or to the President of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it effective. The
Board may remove any officer with or without cause at any time, provided that
such action by the Board shall require the vote of a majority of the whole
Board. Any such removal shall be without prejudice to the contractual rights of
such officer, if any, with the Corporation, but the election of an officer shall
not of itself create contractual rights. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or otherwise shall or may be
filled for the unexpired portion of the term by the Board at any regular or
special meeting in the manner provided in Section 4.1 for election of officers
following the annual meeting of stockholders.
Section 4.3. Chairman of the Board. The Chairman of the Board
shall have and may exercise such powers and perform such other duties as are,
from time to time, assigned to him by the Board and as may be provided by law.
In addition, he shall preside at all meetings of the Board of Directors and of
the stockholders at which he shall be present.
Section 4.4. President. The President shall perform all duties
incident to such office, and such other duties as, from time to time, may be
assigned to him by the Board or as may be provided by law.
Section 4.5. Chief Executive Officer. The Board of Directors
may by resolution designate an officer to be the Chief Executive Officer of the
Corporation. Such Chief Executive Officer shall have general charge and
supervision of the management and affairs of the Corporation and such other
duties as may be assigned by the Board from time to time.
Section 4.6. Vice Presidents. The Vice President or Vice
Presidents, at the request of the President or in his absence or during his
inability to act, shall perform the duties of the President, and when so acting
shall have the powers of the President. If there be more than one Vice
President,
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the Board of Directors may determine which one or more of the Vice Presidents
shall perform any of such duties; or if such determination is not made by the
Board, the President may make such determination; otherwise any of the Vice
Presidents may perform any of such duties. The Vice President or Vice Presidents
shall have such other powers and perform such other duties as may be assigned to
him or them by the Board or the President or as may be provided by law.
Section 4.7. Secretary. The Secretary shall have the duty to
record the proceedings of the meetings of the stockholders, the Board of
Directors and any committees in a book to be kept for that purpose; he shall see
that all notices are duly given in accordance with the provisions of these
by-laws or as required by law; he shall be custodian of the records of the
Corporation; he may affix the corporate seal to any document the execution of
which, on behalf of the Corporation, is duly authorized, and when so affixed may
attest the same; and, in general, he shall perform all duties incident to the
office of secretary of a corporation, and such other duties as, from time to
time, may be assigned to him by the Board or the President or as may be provided
by law.
Section 4.8. Treasurer. The Treasurer shall have charge of and
be responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks, trust companies
or other depositories as shall, from time to time, be selected by or under
authority of the Board of Directors; if required by the Board, he shall give a
bond for the faithful discharge of his duties, with such surety or sureties as
the Board may determine; he shall keep or cause to be kept full and accurate
records of all receipts and disbursements in books of the Corporation and shall
render to the President and to the Board, whenever requested, an account of the
financial condition of the Corporation; and, in general, he shall perform all
the duties incident to the office of treasurer of a corporation, and such other
duties as may be assigned to him by the Board or the President or as may be
provided by law.
Section 4.9. Other Officers. The other officers, if any, of
the Corporation shall have such powers and duties in the management of the
Corporation as shall be stated in a resolution adopted by the Board of Directors
which is not inconsistent with these by-laws and, to the extent not so stated,
as generally pertain to their respective offices, subject to the control of the
Board. The Board may require any officer, agent
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or employee to give security for the faithful performance of his duties.
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by or in the name of
the Corporation by the Chairman of the Board of Directors, or the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary, of the Corporation, certifying the number of shares
owned by him in the Corporation. If such certificate is manually signed by one
officer or manually countersigned by a transfer agent or by a registrar, any
other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1. Seal. The Corporation may have a corporate seal
which shall have the name of the Corporation inscribed thereon and shall be in
such form as may be approved from time to time by the Board of Directors. The
corporate
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seal may be used by causing it or a facsimile thereof to be impressed or affixed
or in any other manner reproduced.
Section 6.2. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Whenever notice is required to be given by law or
under any provision of the certificate of incorporation or these by-laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the certificate
of incorporation or these by-laws.
Section 6.3. Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 6.4. Dividends. Dividends upon the stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, bonds, in property, or
in shares of stock, subject to the provisions of the Certificate of
Incorporation.
Section 6.5. Reserves. Before the payment of any dividend,
there may be set aside out of any funds of the corporation available for
dividends such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purposes as the directors shall think conducive
to the interest of the Corporation, and the directors may modify or abolish any
such reserve.
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Section 6.6. Checks. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
Section 6.7. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 6.8. Offices. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware. The
Corporation may also have offices at such other places within or outside the
State of Delaware as the Board of Directors may from time to time determine or
the business of the Corporation may require.
ARTICLE VII
Amendments
Section 7.1. Amendments. These by-laws may be altered, amended
or repealed at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment or repeal be contained in the
notice of such special meeting.
ARTICLE VIII
Indemnification
Section 8.1. Indemnification. The Corporation shall indemnify
to the fullest extent permitted by law any person made or threatened to be made
a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person, or a
person of whom he or she is the legal representative, is or was a director,
officer, employee or agent of the Corporation or any predecessor of the
Corporation, or serves or served any other enterprise as a director, officer,
employee or agent at the request of the Corporation or any predecessor of the
Corporation.
The Corporation shall pay any expenses reasonably incurred by
a director or officer in defending a civil or crimi-
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nal action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation
under this Article or otherwise. The Corporation may, by action of its Board of
Directors, provide for the payment of such expenses incurred by employees and
agents of the Corporation as it deems appropriate.
The rights conferred on any person under this Article shall
not be deemed exclusive of any other rights that such person may have or
hereafter acquire under any statute, provision of the Corporation's Certificate
of Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise. All rights to indemnification and to the advancement of
expenses under this Article shall be deemed to be provided by a contract between
the Corporation and the director, officer, employee or agent who serves in such
capacity at any time while these By-Laws and any other relevant provisions of
the Delaware General Corporation Law and any other applicable law, if any, are
in effect. Any repeal or modification thereof shall not affect any rights or
obligations then existing.
For purposes of this Article, references to "the Corporation"
shall be deemed to include any subsidiary of the Corporation now or hereafter
organized under the laws of the State of Delaware.